Foreign assets are always tricky for U.S. tax reporting. A recent court decision also shows that differentiating a foundation from a trust is pivotal.
The levying of tax penalties stood in a recent federal appeals court decision on whether a private foundation was a foreign trust subject to such penalties.
In the Rost v. U.S., the U.S. Court of Appeals for the Fifth Circuit upheld tax penalties against U.S. citizen John Rebold, who failed to report his personal-use Liechtenstein “Stiftung” (a non-charitable private foundation) as a foreign trust.
The decedent Rebold formed the Enelre Foundation in 2005 for the general support and education of him and his children. He transferred $2 million to the foundation in 2005 and $1 million in 2007 and did not disclose the transactions to the IRS.
Rebold later learned that the IRS would consider his foundation a foreign trust with the associated reporting requirements. He filed the reports belatedly, in 2013, and the IRS assessed penalties.
Under IRC Sec. 6048, a U.S. person must report creation of a foreign trust, transfers to a foreign trust and distributions received by a foreign trust; ownership of the trust must also be disclosed. Annual filing forms are 3520 and 3520-A, and penalty for failing to file is the greater of $10,000 or 35% of the gross value of property contributed to a foreign trust.
Rebold paid the penalties and then filed a refund action, arguing that the penalties were improper because the reporting requirements for the private foundation were unclear, even though he’d been told as early as 2010 (a year before the IRS announced a new Offshore Voluntary Disclosure Initiative, aka OVDI) that his tax-reporting position was obvious.
He was assessed $1,380,252.35 in penalties and negotiated to reduce these penalties by half. He paid the reduced penalties and filed for an administrative refund claim, which was ultimately taken over by his estate after his death. The estate argued that the foundation wasn’t a foreign trust, claiming that the rules defining trusts are vague and that the IRS never designated that a Stiftung was a foreign trust.
Taxpayers who don’t meet their tax obligations may owe a penalty.
The IRS charges a penalty for various reasons, including if you don’t:
- File your tax return on time
- Pay any tax you owe on time and in the right way
- Prepare an accurate return
- Provide accurate information returns
We may charge interest on a penalty if you don’t pay it in full. We charge some penalties every month until you pay the full amount you owe.
Understand the different types of penalties, what you need to do if you get a penalty and how to avoid getting one.
Tax professionals are intimately familiar with certain reporting requirements under the Internal Revenue Code. Indeed, a failure to properly and timely report a position on a return where it is otherwise required may result in significant penalties to a taxpayer.
One common failure-to-report penalty relates to so-called “listed transactions.” Generally, these transactions must be reported on an IRS Form 8886, Reportable Transaction Disclosure Statement. Any failure to report the transaction on a timely and properly filed Form 8886 can result in significant penalties—up to $200,000 per year. See I.R.C. § 6707A.
TaxConnections is calling out to tax professional members who will tell real-life stories of clients impacted by the changes in tax laws, tax increases and tax audits. Our digital tax platform is one where tax experts and taxpayers connect around the world. More than ever, people are affected by tax increases in local, state, federal and international tax jurisdictions. Last November 2019, a blog titled “Shocking Behind The Scenes Story: Tax Professionals Advocating For Taxpayers On 3520-A Penalties” which created hundreds of comments on the topic of taxpayers being treated unfairly. If you read the comments you will discover the unwanted and difficult positions taxpayers were faced with on this issue. The point is we know there are many tax stories in the hands of TaxConnections Members that we need to bring to the attention of taxpayers.
The miscellaneous offshore penalty under the Streamlined Procedures is five percent of the highest aggregate account balance during the disclosure period. A number of factors can influence exactly how this penalty will be calculated in your case.
Asset Balances That Are Counted
The balances in all of your foreign financial accounts will generally be counted for the penalty calculation. The year-end balances will be reviewed and the highest aggregate balance will be used to determine your penalty amount.
Any asset that should have been reported will count for these purposes. Even if assets were reported on an FBAR, but the income from these accounts wasn’t reported on your tax return, they will also be counted for the penalty calculation.
Simply find the highest aggregate account balance and multiply it by five percent to determine your penalty amount under the Streamlined Procedures. This is the penalty that applies to domestic taxpayers.
The Affordable Care Act (Obamacare) included a “shared responsibility payment,” which in reality is a penalty for not having health insurance. Along with this penalty came a whole slew of exemptions from the penalty, including some that were designated as “hardship” exemptions. However, the hardship relief from the penalty required pre-approval from the government health insurance marketplace, which required the applicant to provide documentary evidence of the hardship. Once approved, the applicant was issued an exemption certificate number (ECN) that needed to be included on the individual’s tax return to avoid the penalty. Read More
With the arrival of the holidays, we are thinking about family get-together’s, holiday gifting and parties. But right behind the good times is tax season. Before you get busy with holiday festivities, take the time to consider a couple of things you can do now to avoid or reduce potential penalties on your 2017 tax return.
If you are a wage earner, you may not have had enough income tax withheld from your paycheck to meet your tax liability for the year. Or, if you have wages and also have taxable income from other sources such as investments, a second job or a side business, or if you are married and your spouse is also employed, your withholding for the year may not be enough to cover your 2017 tax liability. Read More
FBARs (Foreign Bank Account Reports) have been a filing requirement for Americans with financial accounts overseas that meet the criteria since the Bank Secrecy Act of 1970. It has only been enforced for the last few years however, since the 2010 Foreign Account tax Compliance Act (FATCA) obliged foreign financial institutions to pass details about their American account holders to the IRS. Currently around 300,000 foreign banks and other financial firms are doing this. Read More
There are lots of scare stories going around about the possible consequences for not filing U.S. taxes as an expat. You may have heard for example about U.S. passports being revoked, sizable FBAR penalties, and banks closing expats’ accounts because of FATCA. So if you’re an expat who’s behind with their U.S. tax filing, you may well be at least a little bit concerned. Read More
The purpose of this post is to explore how inflation results in the facilitation of enhanced penalty collection in America today.
What is inflation? “Inflation is defined as a sustained increase in the general level of prices for goods and services in a county, and is measured as an annual percentage change. Under conditions of inflation, the prices of things rise over time. Put differently, as inflation rises, every dollar you own buys a smaller percentage of a good or service. When prices rise, and alternatively when the value of money falls you have inflation.” Read More
If you employ someone to work for you around your house, it is important to consider the tax implications of this arrangement. While many people disregard the need to pay taxes on household employees, they do so at the risk of paying stiff tax penalties down the road.
As you will see, the rules for hiring household help are quite complex, even for a relatively minor employee, and a mistake can bring on a tax headache that most of us would prefer to avoid.
Commonly referred to as the “nanny tax”, these rules apply to you only if (1) you pay someone for household work and (2) that worker is your employee.
Household work is work that is performed in or around your home by baby-sitters, Read More